Full opinion text
MEMORANDUM AND ORDER KEITH P. ELLISON, District Judge. Pending before the Court are Defendant Mark A. Jackson’s (“Jackson”) Motion to Dismiss the Complaint Under Rule 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted (Doc. No. 35), and Defendant James J. Ruehlen’s (“Ruehlen”) Motion to Dismiss Plaintiffs Complaint for Failure to State a Claim (Doc. No. 36). After considering the parties’ filings, all responses and replies thereto, and the applicable law, the Court finds that the Defendants’ Motions should be GRANTED IN PART and DENIED IN PART. I. BACKGROUND The Securities and Exchange Commission (“SEC”) filed'this enforcement action against former and current officers of Noble Corporation (“Noble”). (Compl. ¶ 1.) Noble is an international provider of offshore drilling services and equipment. (Compl. ¶ 1.) Noble and its wholly owned subsidiary, Noble Drilling (Nigeria) Ltd. (“Noble-Nigeria”), operate in Nigeria. (Compl. ¶ 1.) Between January 2003 and May 2007, Noble-Nigeria had up to seven drilling rigs that operated offshore in Nigeria. (Compl. ¶ 18.) To operate drilling rigs offshore in Nigeria, the Nigerian laws require the owner of the rig to either pay permanent import duties or obtain a Temporary Import Permit (“TIP”). (Compl. ¶¶ 18-20.) TIPs allow drilling rigs to operate in Nigerian waters without payment of permanent import duties. (Compl. ¶ 18.) Under Nigerian law, the Nigeria Customs Service (“NCS”) grants TIPs for rigs that will be in the country for only one year. (Compl. ¶ 19.) NCS may, in its discretion, grant up to three six-month extensions to a TIP. (Compl. ¶ 20.) Upon the expiration of a TIP and any TIP extensions, NCS requires the rig to be exported from Nigeria. (Compl. ¶ 20.) If the owner of the rig wishes to continue using the rig after the expiration of a TIP and any applicable extensions, he can either convert the rig to permanent import status and pay the appropriate permanent import duties, or he can export the rig and seek a new rig TIP to re-import the rig. (Compl. ¶ 20.) In order to obtain a TIP or an extension, the rig owner must submit an application through a licensed customs agent; NCS does not deal directly with rig owners. (Compl. ¶ 21.) Noble’s standard procedure in applying for TIPs and TIP extensions would involve obtaining a price proposal from a customs agent detailing the costs associated with obtaining the new TIP or extension. (Compl. ¶ 23.) The proposals would indicate those charges that did not have any supporting documentation by labeling them as “special handling” or “procurement.” (Compl. ¶ 23.) Noble’s FCPA policy required such unreceipted payments to foreign government officials to be pre-approved in writing by the CFO. (Compl. ¶ 24.) Once the CFO approved the unreceipted payments, the customs agent would be authorized to pay the Nigerian government officials in accordance with the price proposal. (Compl. ¶ 24.) The customs agent would then submit an invoice to Noble reimbursing him for the money paid to the Nigerian government officials. (Compl. ¶ 25.) The SEC alleges that Noble and Noble-Nigeria authorized a customs agent to pay bribes to Nigerian government officials in order, to obtain false documentation Noble-Nigeria needed to obtain TIPs. (Compl. ¶¶ 18, 19, 22-27.) Additionally, the SEC alleges, Noble and Noble-Nigeria, through a customs agent, paid bribes to Nigerian government officials for TIP extensions. (Compl. ¶ 31.) In this action, the SEC charges Jackson and Ruehlen with multiple violations of the Foreign Corrupt Practices Act (“FCPA”), and other federal securities laws in 'connection with actions they allegedly took to obtain TIPs and TIP extensions in order to avoid paying permanent import duties. (Compl. ¶¶ 2-4,150-177.) Specifically, Jackson and Ruehlen are alleged to have approved numerous “special handling” and “procurement” payments to Nigerian government, understanding that all “special handling” and “procurement” payments were bribes to government officials to obtain false paperwork necessary to secure TIPs or to obtain discretionary TIP extensions. (Compl. ¶ 24.) Consequently, the SEC avers Jackson and Ruehlen both violated Section 30A of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78dd-l. (Compl. ¶¶ 151-152.) Furthermore, through this conduct, Jackson and Ruehlen also aided and abetted Noble’s violation of Section 30A of the Exchange Act, in violation of Section 20(e) of the Exchange Act, 15 U.S.C. § 78t(e). (Compl. ¶¶ 155-156.) Moreover, the SEC contends, Jackson and Ruehlen allowed these payments repeatedly to be posted on Noble’s books as legitimate operating expenses. (Compl. ¶¶ 95, 111, 113, 119.) In so doing, Jackson and Ruehlen aided and abetted Noble’s violation of Section 13(b)(2)(A) of the Exchange Act, 15 U.S.C. § 78m(b)(2)(A), which requires Noble to keep books and records that accurately reflect its transactions, and Noble’s violation of Section 13(b)(2)(B) of the Exchange Act, 15 U.S.C. § 78m(b)(2)(B), which requires Noble to devise and maintain a system of internal controls that provides reasonable assurances that transactions are executed in accordance with management’s general or specific authorizations, in violation of Section 20(e) of the Exchange Act, 15 U.S.C. § 78t(e). (Compl. ¶¶ 158-163.) Additionally, because Jackson and Ruehlen knew these actions violated an Audit Committee resolution, and because Ruehlen frequently authorized these unreceipted TIP-related payments to government officials without pre-approval from the CFO, Jackson and Ruehlen’s actions amounted to a knowing circumvention of Noble’s internal accounting controls, in violation of Section 13(b)(5) of the Exchange Act, 15 U.S.C. § 78m(b)(5), or, at a minimum, Jackson and Ruehlen, at least indirectly, caused Noble’s books and accounts to be false, in violation of Exchange Act Rule 13b2-l, 17 C.F.R. § 240.13b2-l. (Compl. ¶¶ 165-167.) The SEC also alleges several violations against Jackson alone. (Compl. ¶¶ 168-177.) In representing to auditors that he was unaware of any FCPA violations or violations of law, Jackson violated Exchange Act Rule 13b2-2, 17 C.F.R. § 240.13b2-2. (Compl. ¶¶ 169-170.) In personally certifying that he had disclosed all significant deficiencies and material weaknesses in the design or operation of internal controls, as required by the Sarbanes-Oxley Act of 2002, Jackson violated Exchange Act Rule 13a-14, 17 C.F.R. § 240.13a-14. (Compl. ¶¶ 172-173.) Finally, because Jackson controlled Noble and Ruehlen, the SEC seeks to hold Jackson liable as a control person under Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a), for Noble, Ruehlen’s and unnamed others’ violations of Sections 30A, 13(b)(2)(A) and 13(b)(2)(B) of the Exchange Act, 15 U.S.C. § 78dd-l, 15 U.S.C. §§ 78m(b)(2)(A) and (B). (Compl. ¶¶ 174-177.) During the relevant time periods, Jackson held numerous, executive-level positions at Noble. (Compl. ¶ 8.) From September 2000 to October 2005, he was the CFO of Noble. (Compl. ¶ 31.) In March 2005, Jackson became the COO of Noble, but continued to act as the CFO until October 2005, when a replacement was found. (Compl. ¶ 101.) In about March of 2006, the CFO stepped down, and Jackson assumed the role of Acting CFO from March 2006 to November 2006, until a new CFO was hired. (Compl. ¶ 8, 114.) In addition to these roles, Jackson also became the president of Noble in February 2006, a Director in July 2006, and CEO in October of 2006. (Compl. ¶8.) Jackson resigned from Noble in September 2007. (Compl. ¶ 12.) As CFO and Acting CFO, Jackson was responsible for Noble’s compliance with the FCPA. (Compl. ¶ 9.) The SEC alleges that several events that transpired in 2003 and 2004 put Jackson on notice that Noble was violating the FCPA. (Compl. ¶ 33.) During Jackson’s tenure as CFO, in February of 2003, the Nigerian government assessed a penalty against Noble-Nigeria for, among other things, preparing false documents to obtain TIPs. (Compl. ¶ 36.) Additionally, in January of 2004, Jackson also received a company-wide internal audit report regarding FCPA compliance (“FCPA Audit”). (Compl. ¶37.) The FCPA Audit indicated that employees did not understand the FCPA, did not comply with Noble’s FCPA procedures, and did not get proper approvals before making unreceipted payments to foreign officials. (Compl. ¶ 38.) The SEC similarly alleges that events that transpired in 2003 and 2004 put Ruehlen on notice that Noble was violating the FCPA. (Compl. ¶ 33.) In 2003 and 2004, Ruehlen worked in Noble’s operations and corporate internal audit groups. (Compl. ¶ 15.) During that period, he worked on an audit of the West Africa Division (“West Africa Audit”), which revealed Noble-Nigeria’s use of false paperwork and payments of approximately $75,000 every two years in order to obtain improper TIPs. (Compl. ¶ 15, 47.) Ruehlen summarized in writing the penalty Noble-Nigeria had previously paid to the Nigerian government for violation of the TIP laws, Noble-Nigeria’s continued use of false pretenses and payments of approximately $75,000 bi-annually to customs agents to obtain TIPs, and the risks associated with continued improper use of the TIP system. (Compl. ¶ 47.) However, the final West Africa Division Audit Report, completed by Ruehlen and others in April of 2004, described the use of false paperwork to obtain a TIP as a one-time occurrence and did not mention the biannual payments. (Compl. ¶ 48.) Nonetheless, the report highlighted the finding about a false paperwork TIP as an area for control and process improvement. (Compl. ¶ 50.) The Audit Committee of Noble’s Board of Directors, at a meeting at which Jackson was present, indicated its concern about the use of false paperwork. (Compl. ¶ 51.) In September 2004, Ruehlen became Division Manager of Noble-Nigeria. (Compl. ¶ 14.) In this position, he signed Division representation letters certifying his division’s compliance with the FCPA, certifying the accuracy of Noble’s books, records and accounts, and certifying the division’s adherence to internal controls. (Compl. ¶ 14.) From about May 2005 to the first quarter of 2007, Ruehlen reported directly to Jackson. (Compl. ¶ 14.) The Complaint further provides that Ruehlen is the highest-level Noble executive in Nigeria and continues to be responsible for all of Noble-Nigeria’s operations. (Compl. ¶ 13.) When Ruehlen began working in Nigeria, Noble-Nigeria was looking into obtaining third extensions for two rigs. (Compl. ¶ 14.) On July 29, 2004, Ruehlen received the customs agent’s proposals indicating that the third extension would require 5,000,000 Naira in “special handling” charges. (Compl. ¶ 55.) Ruehlen had reservations about the size of the fee, but nonetheless directed the agent to get the third extensions. (Compl. ¶ 56.) In August 2004, Noble-Nigeria’s Operations Manager discussed the matter with Ruehlen, noting that he did not have a good feeling about the customs agent and stating that “the way the[y] work is not sound and above the table;” he recommended no further involvement with the agent. (Compl. ¶ 58.) Nonetheless, Noble-Nigeria sought approval from Jackson to pay the unreceipted 5,000,000 Naira, indicating that the payment was a “high but necessary cost” to obtaining the extensions. (Compl. ¶ 59.) Jackson approved the payment. (Compl. ¶ 60.) In September 2004, Ruehlen received copies of the third extensions, which explicitly stated that NCS would grant no more extensions and that the rigs must be exported in the end of February 2005. (Compl. ¶ 62.) Nonetheless, toward the end of 2004, Ruehlen sought two fourth extensions for these rigs, and a third extension for another rig. (Compl. ¶ 65.) The customs agent advised Ruehlen that NCS would not grant a fourth extension. (Compl. ¶ 66.) The third extension was also denied because the rig was operating under a different contract than the contract used to get a TIP, in contravention of the TIP’s terms. (Compl. ¶ 67.) In February 2005, Ruehlen unilaterally decided to resume the use of false paperwork to obtain three new TIPs. (Compl. ¶ 68.) He obtained a price proposal from a customs agent indicating the “procurement” cost would be 5,000,000 Naira and there would be an additional 1,900,000 Naira in “special handling” charges for each rig associated with showing movement of the rig on paper, when in fact the rigs would not leave Nigerian waters. (Compl. ¶ 69.) The proposal specifically indicated that payments would be made to the Nigerian Port Authority (“NPA”) and the National Maritime Authority (“NMA”), as well as husbandry charges at Cameroon offshore, all presumably to obtain paperwork showing the fictitious movement of the rigs. (Compl. ¶69.) Between February 21 and 28, 2005, Ruehlen prepared TIP applications representing that the rigs were outside Nigeria and authorized the customs agent to use these applications and proceed in accordance with the price proposal. (Compl. ¶ 70.) In late March of 2005, when the fraudulent applications were already being processed by NCS, Ruehlen informed the head of internal audit that he resumed the use of false paperwork and payments to obtain TIPs. (Compl. ¶ 75.) On May 9, 2005, NCS granted Noble-Nigeria new TIPs for the three rigs. (Compl. ¶ 81.) Only after receiving the TIPs did Ruehlen seek approval from Jackson to pay the 1,900,000 Naira in “special handling” fees for each rig. (Compl. ¶ 82.) These fees corresponded with the “export” portion of the false paperwork. (Compl. ¶ 82.) Jackson indicated he was “OK with approving,” but asked for clarification from the head of internal audit about the West Africa Audit’s findings. (Compl. ¶ 83.) The head of internal audit summarized the report and the resolution presented to the audit committee, which provided that Noble-Nigeria would not use false paperwork and would physically export the rigs to obtain new TIPs. (Compl. ¶ 84.) The head of internal audit asked Ruehlen to explain why he decided to revert to using false paperwork. (Compl. ¶ 84.) Ruehlen responded to both the head of internal audit and Jackson, explaining that physically exporting the rigs would require them to be off-contract for four to six weeks, which would be costly and could potentially lead to cancellation of contracts. (Compl. ¶ 85.) He claimed that the only way to keep the rigs on contract and get new TIPs was to indicate, through false paperwork, that the rigs had been exported and re-imported when in fact they did not move. (Compl. ¶ 85.) On May 25, 2005, Jackson approved the “special handling” charges. (Compl. ¶ 88.) By this time, Ruehlen had already signed a check paying the customs agent’s invoice for the “special handling” fees. (Compl. ¶ 86.) That same day, Noble-Nigeria posted the “special handling” charges to accounts for legitimate operating expenses. (Compl. ¶ 88.) Around this same time, in May of 2005, Jackson and Ruehlen agreed to implement a preapproval process for the numerous small payments ' Noble-Nigeria made to government officials. (Compl. ¶ 91.) Under the plan, Ruehlen would send Jackson a quarterly report detailing the prior quarter’s payments to government officials and also requesting blanket pre-approval of payments for the current quarter based on a projected cumulative total. (Compl. ¶ 91.) Although TIP-related payments were included in the report for prior quarter payments, they were not subject to pre-approval. (Compl. ¶ 91.) In September 2005, Ruehlen received the invoice for the remaining “procurement” fee of 5,000,000 Naira. (Compl. ¶ 92.) Ruehlen requested approval of the 5.000. 000 Naira fee, which he described as a “special handling” fee, from Jackson on September, 16, 2005, and Jackson approved the payment that same day. (Compl. ¶¶ 93-94.) These fees were subsequently booked as legitimate operating expenses. (Compl. ¶¶ 95.) Earlier that year, in May 2005, Ruehlen also sought a third extension fee on a rig. (Compl. ¶ 96.) Upon receiving the price proposal from the customs agent, which indicated a 5,000,000 Naira “special handling” fee, Ruehlen authorized the customs agent to seek a third extension without Jackson’s approval. (Compl. ¶ 96.) The TIP extension was granted by NCS on June 13, 2005. (Compl. ¶ 97.) Like the previously issued third TIP extensions, the extension indicated that it was the final extension and, at its expiration, Noble-Nigeria either had to export the rig or pay permanent import duties. (Compl. ¶ 92.) Ruehlen sought Jackson’s approval of the 5.000. 000 Naira “special handling” fee only after receiving the customs agent’s invoice. (Compl. ¶ 98.) Jackson approved the payment. (Compl. ¶ 98.) After Jackson became COO, Ruehlen continued to seek TIPs based on false paperwork. (Compl. ■ ¶¶ 103-109.) Ruehlen represented that the “special handling” and . “procurement” charges associated with these TIPs were “the same as we have paid in the past for this process.” (Compl. ¶ 103.) Neither Ruehlen nor Jackson informed the new CFO that these payments were for obtaining and processing paperwork that would document fictitious export and re-import of the rigs, that they violated Nigeria’s protocol for obtaining a TIP, or that the procedure used to obtain the TIPs would contravene the Audit Committee’s instructions after the West Africa Audit. (Compl. ¶ 104.) The new CFO approved two. such payments in December 2005 and January 2006. (Compl. ¶¶ 104, 107.) Ruehlen then authorized the customs agent to obtain the new TIPs. (Compl. ¶¶ 105, 108.) Both TIPs were granted. (Compl. ¶¶ 106, 109.) In May 2006, Ruehlen received the customs- agent’s invoices for the export- portion of the two TIPs. (Compl. ¶ 110.) The invoices documented inward and outward movement of the rigs when, in fact, the rigs never moved. (Compl. ¶ 110.) Like the invoice for the previous TIPs based on false paperwork, this invoice listed payments made to the NPA and the NMA, specifically indicating that these fees were associated with “outwards” movement. (Compl. ¶ 110.) Ruehlen approved payment of these invoices, and they were booked as legitimate operating expenses. (Compl. ¶ 111.) In June 2006, the customs agent provided invoices for the import portion of the two TIPs. (Compl. ¶ 112.) This invoice indicated charges for towing the rigs inward and outward and NPA and NMA charges for “inwards” processing. (Compl. ¶ 112.) Ruehlen again approved payment of these invoices, and they were recorded as legitimate operating expenses on Noble’s books. (Compl. ¶ 113.) In March 2006, the new Noble CFO resigned and Jackson again became acting CFO. (Compl. ¶ 114.) While Jackson ' was acting CFO, several TIP payment-related events transpired. (Compl. ¶¶ 115-119.) On or about May 16, 2006, Jackson approved 3,000,000 Naira in “special handling” fees to obtain a second TIP extension. (Compl. ¶ 115.) In July 2006, Jackson received Ruehlen’s quarterly request for blanket pre-approval of non-TIP related payments to government officials. (Compl. ¶ 116.) Instead of responding to the request, Jackson allowed another Noble executive to approve the request. (Compl. ¶ 116.) On or about October 19, 2006, Ruehlen received a price proposal from the customs agent for a third TIP extension, which included a “special handling” charge of 1,750,000 Naira. (Compl. ¶ 117.) Instead of seeking pre-approval from Jackson to pay the fee, Ruehlen sent the request to the executive who had approved Ruehlen’s last quarterly blanket pre-approval. (Compl. ¶ 117.) Ruehlen told the executive that the payment was “in line with payments made in the past for handling of temporary imports for this unit.” (Compl. ¶ 117.) Subsequently, Ruehlen learned the “special handling” charges had been nearly doubled to 3.000. 000 Naira, and sought approval for the revised “special handling” charges. (Compl. ¶ 117.) The executive did not respond to Ruehlen or approve the payment. (Compl. ¶ 117.) Ruehlen nonetheless told the customs agent to secure the third TIP. (Compl. ¶ 118.) NCS granted the third extension, and, as it had done with all prior third extensions, indicated that it would be the final extension. (Compl. ¶ 118.) On November 1, 2006, Ruehlen received the invoice from the customs agent for the third TIP extension. (Compl. ¶ 119.) Still lacking any approval from the CFO or any other executive, Ruehlen had Noble-Nigeria process and pay the invoice, including the 3.000. 000 Naira in “special handling” fees. (Compl. ¶ 119.) The 3,000,000 Naira payment was posted as a legitimate operating expense on Noble’s books. (Compl. ¶ 119.) In early 2006, Noble hired a new CFO. (Compl. ¶ 120.) Shortly thereafter, Ruehlen sent the new CFO a request to approve “special handling” charges to obtain second extensions for three rigs - in the amount of 1,600,000 Naira. (Compl. ¶ 120.) Ruehlen stated that the payments were the same as what had been paid in the past. (Compl. ¶ 120.) Ruehlen also requested approval of “special handling” charges for the third TIP extension that Ruehlen had already authorized in October. (Compl. ¶ 121.) However, Ruehlen sought approval for only 1,750,000 Naira in fees, not the 3,000,000 that he had previously authorized. (Compl. ¶ 121.) The new CFO was concerned about his qualifications to approve these payments, and reached out to Jackson, who was then Noble’s CEO, President and COO, a member of the Board of Directors, and Noble’s former CFO. (Compl. ¶ 122.) He continued to raise concerns about the approval process for several months. (Compl. ¶ 122.) Jackson simply told the new CFO to rely on the advice of Noble’s then-Controller, but did not tell him that the Controller knew that Noble-Nigeria used false paperwork and large, unreceipted payments to obtain TIPs and extensions. (Compl. ¶ 123.) Nor did he mention anything about his own prior approval of such payments. (Compl. ¶ 123.) The Controller approved the payments, and the CFO relied on that approval to give his own approval. (Compl. ¶ 124.) In late January or early February of 2007, Ruehlen requested and received approval for “special handling” charges of 1,600,000 Naira for two first TIP extensions. (Compl. ¶ 125.) In February 2007, the head of internal audit emailed Ruehlen expressing concern about a news report about prosecutions of other oil companies for violating the FCPA by paying Nigerian officials for fast customs clearance. (Compl. ¶ 138.) He informed Ruehlen that the Audit Committee wanted an FCPA update each quarter, and was concerned that the West Africa Audit resolution concerning the use of false paperwork had not been recently reviewed. (Compl. ¶ 138.) He also asked Ruehlen if the customs agent had signed an agreement to comply with the FCPA and granted Noble-Nigeria audit rights. (Compl. ¶ 138.) Ruehlen attempted to locate an agreement with the customs agent but could not find one. (Compl. ¶ 139.) He obtained a draft, unexecuted copy from Noble’s corporate offices. (Compl. ¶ 139.) According to the agreement, the customs agent was required to sign annual certifications of compliance with the FCPA. (Compl. ¶ 139.) Ruehlen had never obtained these annual certifications from the customs agent. (Compl. ¶ 139.) Upon obtaining the draft agreement, Ruehlen sent the customs agent the annual certification form and asked him to certify compliance for 2004 and 2005. (Compl. ¶ 140.) On February 22, 2007, Ruehlen received the customs agent’s signed certifications, which were backdated to July 13, 2005 and July 20, 2006. (Compl. ¶ 140.) Ruehlen did not tell anyone that the certifications were backdated. (Compl. ¶ 140.) Also in February 2007, Ruehlen decided again to try to seek a fourth TIP extension for a rig, despite the terms of third TIP extensions. (Compl. ¶ 126.) He hired a new customs agent to attempt to obtain the fourth extension, and the customs agent told Ruehlen the fourth extension would require a “procurement” fee of 7,000,000 Naira. (Compl. ¶ 126.) On April 11, 2007, Ruehlen asked the new CFO to approve the “procurement” charges. (Compl. ¶ 127.) He explained that Noble-Nigeria had never received a fourth extension, so he had no historical cost comparison, but he did state that 7,000,000 Naira was comparable to the cost of obtaining a new TIP for one of the rigs. (Compl. ¶¶ 127-128.) Ruehlen did not explain that TIP extensions typically cost less than new TIPs, nor did he mention that NCS did not grant fourth extensions. (Compl. ¶ 128.) The CFO approved the payment that same day. (Compl. ¶ 127.) In March 2007, Ruehlen began the process of obtaining false paperwork TIPs for three rigs. (Compl. ¶ 131.) The customs agent sent Ruehlen price proposals, including 2,000,000 Naira in “special handling” fees and 5,000,000 Naira in “procurement” fees for each rig. (Compl. ¶ 132.) On April 16, 2007, Ruehlen requested approval for these fees. (Compl. ¶ 133.) He also authorized the customs agent to begin obtaining the false paperwork TIPs. (Compl. ¶ 134.) In May 2007, the customs agent sent Ruehlen invoices for the export portion of the three false paperwork TIPs and the invoice for the fourth TIP extension. (Compl. ¶¶ 130, 136.) However, because Noble’s Audit Committee, in or about May 2007, had begun an internal investigation into payments to Nigerian officials for TIPs and TIP extensions, these invoices were ultimately unpaid. (Compl. ¶¶ 130, 137.) Between 2005 and 2007, Ruehlen and. Jackson signed various representation letters and personal certifications. (Compl. ¶¶ 141-146.) Ruehlen prepared and signed quarterly representation letters, dated from April 13, 2005 to May 3, 2007, to Noble’s upper management stating-that Noble-Nigeria had: (1) complied with all Internal Audit action items and resolutions; (2) complied with Noble’s Code of Business Conduct; (3) not violated any laws or regulations; and (4) not violated the FCPA. (Compl. ¶ 141.) Jackson signed annual and quarterly management representation letters to Noble’s independent auditors, dated from August 5, 2005 to May 9, 2007, stating that: (1) he was unaware of any FCPA violations by Noble or its subsidiaries; (2) he was unaware of any other violations of law; (3) he had maintained effective internal controls; (4) there were no material weaknesses in internal control over financial reporting; and (5) he was unaware of any fraud or suspect fraud affecting Noble. (Compl. ¶ 145.) Jackson also signed personal certifications as CFO and CEO that were attached to Noble’s public quarterly and annual filings, dated from August 8, 2005 to May 9, 2007, stating that he had disclosed to Noble’s auditors and Audit Committee all significant deficiencies and material weaknesses in the design or operation of internal controls and any fraud. (Compl. ¶ 146.) Finally, although Jackson had regular contact with the Audit Committee and the board of directors, he did not inform the Audit Committee or any member of the board of directors that he had authorized the use of false paperwork, or that he had authorized the payments made to obtain TIPs and TIP extensions, before May 2007. (Compl. ¶ 143.) From May 2007 through June 2008, when the Audit Committee conducted an internal investigation into Noble-Nigeria’s TIP-related payments to government officials, Jackson refused to give information to investigators. (Compl. ¶ 144.) II. LEGAL STANDARD A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiffs grounds for entitlement to relief — including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Twombly, 550 U.S. at 556 n. 3, 127 S.Ct. 1955 (“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.”). That is, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950 (citation omitted). The court should not “ ‘strain to find inferences favorable to the plaintiffs’ ” or “accept ‘conclusory allegations, unwarranted deductions, or legal conclusions.’ ” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 362 (5th Cir.2004)). A district court can consider the contents of the pleadings, including attachments thereto, as well as documents attached to the motion, if they are referenced in the plaintiffs complaint and are central to the claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir.2000). Importantly, the court should not evaluate the merits of the allegation, but must satisfy itself only that plaintiff has adequately pled a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.2004). “Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.” Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir.2009) (citation omitted); Duke Energy Intern., L.L.C. v. Napoli, 748 F.Supp.2d 656 (S.D.Tex.2010). The Federal Rules of Civil Procedure provide that “leave (to amend the complaint)- shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). “[Granting leave to amend is especially appropriate ... when the trial court has dismissed the complaint for failure to state a claim.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002) (citation omitted). The Court should generally “afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.” Id. III. ANALYSIS A. The FCPA The FCPA provides in relevant part: (a) Prohibition It shall be unlawful for any issuer [of a certain class of securities] ..., or for any officer, director, employee, or agent of such an issuer ..., to make use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay, or authorization of the payment of ... anything of value to— (3) any person, while knowing that all or a portion of such money ... will be offered, given, or promised, directly or indirectly, to any foreign official ... for purposes of- (A)(i) influencing any act or decision of such foreign official ... in his ... official capacity ..., (ii) inducing such foreign official ... to do or omit to do any act in violation of the lawful duty of such foreign official ..., or (iii) securing any improper advantage ... in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person. (b) Exception for routine governmental action Subsection[ ](a) ... of this section shall not apply to any facilitating or expediting payment to a foreign official, political party, or party official the purpose of which is to expedite or to secure the performance of a routine governmental action by a foreign official, political party, or party official. (f) Definitions (3)(A) The term “routine governmental action” means only an action which is ordinarily and commonly performed by a foreign official in— (i) obtaining permits, licenses, or other official documents to qualify a person to do business in a foreign country; (ii) processing governmental papers, such as visas and work orders; (iii) providing police protection, mail pick-up and delivery, or scheduling inspections associated with contract performance or inspections related to transit of goods across country; (iv) providing phone service, power and water supply, loading and unloading cargo, or protecting perishable products or commodities from deterioration; or (v) actions of a similar nature. (B) The term “routine governmental action” does not include any decision by a foreign official whether, or on what terms, to award new business to or to continue business with a particular party, or any action taken by a foreign official involved in the decision-making process to encourage a decision to award new business to or continue business with a particular party. 15 U.S.C. § 78dd-l. Defendants contend that the Complaint fails to adequately plead: (1) the involvement of a foreign official, (2) that the payments were not facilitating payments, and (3) that the Defendants acted corruptly. (Jackson Mot. 9- 19; Ruehlen Mot. 7-17.) Ruehlen also argues that the facilitating payments exception is unconstitutionally vague. (Ruehlen Mot. 17-21). Statutory interpretation begins with the language of the statute. Kosak v. United States, 465 U.S. 848, 853, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984). “A term not defined in a statute must be construed in accordance with its ordinary and natural meaning, as well as the overall policies and objectives of the statute.” United States v. Lowe, 118 F.3d 399, 402 (5th Cir.1997) (citations omitted). If the statute is “susceptible to more than one reasonable interpretation,” courts may consider legislative history to discern the meaning of the statute. United States v. Kay, 359 F.3d 738, 743 (5th Cir.2004) (citations omitted) (“Kay I"). 1. “any foreign official” Defendants contend that the FCPA requires a plaintiff to allege the identity of the foreign official whose authority a defendant sought to misuse. (Jackson Mot. 10- 13; Ruehlen Mot. 7-11.) They suggest that the SEC must allege by name, or at minimum by role and job responsibility, the foreign official who was sought to be influenced. (Jackson Mot. 11; Ruehlen Mot. 8.) The SEC contends that there is nothing in the FCPA that requires pleading the identity of the foreign official involved with the level of detail Defendants advocate. (Doc. No. 37, Pl.’s Consolidated Resp. in Opp’n to Defs. Jackson’s and Ruehlen’s Mot. to Dismiss, 12-14.) Furthermore, it argues that Defendants’ interpretation of the FCPA would run counter to congressional intent. (Resp., at 14-18.) The language of the statute does not appear to require that the identity of the foreign official involved be pled with specificity. Indeed, the terms of the FCPA make it unlawful corruptly to authorize payments to any person, knowing that any portion of those payments would be offered to any foreign official. 15 U.S.C. § 78dd-l(a)(3). It is possible that the requirement that the payment be made or authorized with the purpose of “influencing any act or decision of such foreign official ... in his ... official capacity ..., (ii) inducing such foreign official ... to do or omit to do any act in violation of the lawful duty of such foreign official ..., or (iii) securing any improper advantage ...”, 15 U.S.C. § 78dd-l(a)(3)(A), would, at times, require the government to plead details about the foreign official’s identity, duties and responsibilities. For instance, the Court can imagine cases where, in order to show that the payment was intended to influence the official to neglect some particular duty, the government would have to plead that the official had that duty in the first place. However, the Court can similarly imagine situations where the purpose element could be satisfied without pleading details about a foreign official’s particular duties. Where the government alleges that payments made were intended to influence a foreign official to violate the very laws he is charged with implementing, it hardly seems necessary to require the government to identify the day-to-day duties of that foreign official; that foreign official, irrespective of whether he is the most junior staff member or the official who name appears at the top of the organizational chart, surely has a duty, like every government official, not to violate the laws he is charged with implementing. Furthermore, 15 U.S.C. § 78dd — 1 (a)(3)(A)(iii) provides that the purpose element can be satisfied by factual allegations that a payment was made with the purpose that some foreign official would be paid money to secure some improper advantage, which also does not appear to require allegations about that individual's job responsibilities. The Court cannot see why the purpose requirement in 15 U.S.C. § 78dd-1(a)(3)(A) should mandate a bright-line rule of detailed pleadings about a foreign official’s particular duties. Nothing in the legislative history of the FCPA suggests that Congress intended to limit the application of 15 U.S.C. § 78dd-l to those cases where the government could show that a defendant knew, either' by name or job description, precisely which foreign officials would be receiving the illicit payments he had authorized. The Fifth Circuit has recognized that, subject to the narrow exception for facilitation payments, Congress intended, with the FCPA, to “cast an otherwise wide net over foreign bribery.” Kay I, 359 F.3d at 749. Indeed, in explaining the requirement that a defendant act knowingly, Congress specified that the statute is intended to cover “both prohibited actions that are taken with ‘actual knowledge’ of intended results as well as other actions that, while falling short of what the law terms ‘positive knowledge,’ nevertheless evidence a conscious disregard or deliberate ignorance of known circumstances that should reasonably alert one to the high probability of violations of the Act.” H.R. Conf. Rep. 100-576 (1988), 1988 U.S.C.C.A.N. 1547. In light of this legislative history, .it would be perverse to read into the statute a requirement that a defendant know precisely which government official, or which level of government official, would be targeted by his agent; a defendant could simply avoid liability by ensuring that his agent never told him which official was being targeted and what precise action the official took in exchange for the bribe. Yet, Defendants contend that the Complaint must allege this level of detail. (Jackson Mot., at 13 (“Did Jackson believe these officials were the intake officials -at the Customs office who took the TIP application and passed it on to superiors? Were these officials in charge of checking the accuracy of information on applications? Were these officials in charge of visiting rigs to inspect them before a TIP was granted? Were these officials the final decision-maker regarding granting TIPs?”); Ruehlen Mot., at 10 (“To which particular officials were the allegedly improper payments made or authorized? What were their duties or responsibilities as a matter of law? What unlawful actions were they asked to take based on their particular duties?”).) The Court seriously doubts that Congress intended to hold an individual liable under 15 U.S.C. § 78dd-1(a)(3)(A) only if he took great care to know exactly whom his agent would be bribing and what precise steps that official would be taking. Congress intended to address the problem of domestic entities bribing foreign officials to accomplish certain proscribed ends, see Kay I, 359 F.3d at 747, not domestic entities carefully monitoring the execution of that bribery. And, if the FCPA does not require a defendant to know precisely which government official was being bribed, a plaintiff bears no burden to allege such facts. Finally, the Court finds it instructive that, in the domestic bribery sphere, courts have not required the government to allege or prove details about the domestic official’s position to state a claim. See, e.g., United States v. Jennings, 471 F.2d 1310, 1311-12 (2d Cir.1973) (holding that, in a prosecution under 18 U.S.C. § 201, trial court correctly denied an instruction that would require the government to show the defendant knew that the officials in question were FBI agents); Castro v. United States, 248 F.Supp.2d 1170, 1183-1184 (S.D.Fla.2003) (holding that “the government was not required to prove the identity of the [Metropolitan Dade County] agent whom Movant intended to influence”, in violation of 18 U.S.C. § 666). The Court recognizes that 18 U.S.C. § 201 prohibits bribes intended to influence any official action, while the FCPA applies only to a much more limited subset of bribes. See 15 U.S.C. § 78dd-l(a)-(b). Yet, as explained above, the limitations set out in 15 U.S.C. § 78dd-l(a)(3)(A) do not require the government in every case to plead details about the particular duties of the government official involved; sometimes, the nature of the benefit sought would inherently fall into the class of prohibited acts. Similarly, as discussed infra, pleading the non-applicability of the “facilitating” payments exception will not always require pleading details about the foreign official’s duties. Finally, that the offer or payment must be made in order to assist a defendant in obtaining or retaining business also does not require pleading anything about the foreign officials’ particular responsibilities. Accordingly, the Court’s conclusion is bolstered by the fact that interpretations of the domestic bribery statutes have not required the level of specificity Defendants seek. The authorities cited by the Defendants do not convince this Court. It is true that, in Kay I, the Fifth Circuit noted, in a parenthetical, that among the elements of a violation of the FCPA, are “the identity of the foreign country and of the officials to whom the suspect payments were made, and the sought-after unlawful actions taken or not taken by the foreign officials in consideration of the bribes.” Kay I, 359 F.3d at 760. This, of course, says nothing about the level of detail with which these elements must be alleged. It is telling that, in Kay I itself, the government alleged only that payments were made to “customs officials in the Republic of Haiti” and “officials of other Haitian agencies” to accept documents that understated the true amount of rice being imported by the defendants in that case. Kay I, 359 F.3d at 762. The indictment does not specify the job responsibilities of the customs officials and entirely unidentified “other” officials, or what precise actions they took to accept the false documents at issue in Kay I. If the Fifth Circuit intended for the foreign officials’ identities and specific misdeeds to be alleged in the great level of detail that Defendants propose, the Court thinks it would have made mention of the woefully inadequate allegations in the case before it. The SEC here has alleged that payments were made to “Nigerian government officials” to “process eleven illegitimate TIPs with false paperwork” and “to obtain discretionary or unlawful extensions of these TIPs.” (Compl. ¶¶ 27, 31.) The SEC also specifically alleges that among the agencies that received such payments were the NMA and NPA. (Compl. ¶ 69.) The Court finds that these allegations are no less detailed than the allegations in Kay I’s indictment. Several other cases cited by Defendants are entirely inapposite. For instance, the Court does not disagree that foreign officials are a “necessary part[y]” to an FCPA in the sense that a violation of the FCPA “necessarily involve[s]” them. See United States v. Blondek, 741 F.Supp. 116, 117, 117 n. 1 (N.D.Tex.1990). It does not follow, however, that their identity must be alleged with great detail in the early stages of litigation. Chavers, a RICO action involving allegations of domestic bribery, failed to allege which of the defendants were involved in the bribery. Chavers v. Morrow, No. 08-3286, 2010 WL 3447687, at *4-5, 2010 U.S. Dist. LEXIS 89432, at *12 (S.D.Tex. Aug. 30, 2010). Chavers does not compel the conclusion that the identities of foreign government officials, nonparties to a FCPA suit, must be alleged with particular detail under the FCPA. Finally, a dismissal of a private FCPA counterclaim that failed to offer factual support and only conclusorily pled that a defendant “knowing and intentionally” made “unauthorized payments to officials of foreign governments in violation of [the FCPA]”, see Citicorp International Trading Co. v. Western Oil & Refining Co., No. 88-5377, 1991 WL 4502, at *6 (S.D.N.Y. Jan. 16, 1991), is irrelevant, as the SEC has pled pages upon pages of factual support for its allegations. Nor does the subsequent finding in Citicorp that the amended counterclaim satisfied Rule 12 because it identified, inter alia, “the person to whom the bribes were offered,” see Citicorp International Trading Co. v. Western Oil & Refining Co., 771 F.Supp. 600, 606 (S.D.N.Y.1991), imply that the only way to survive a Rule 12(b)(6) motion is to identify the foreign official involved with the level of detail Defendants propose. None Of the above should be understood to remove the plaintiffs burden of pleading sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Legal conclusions about what Jackson and Ruehlen knew or understood “must be supported by factual allegations” before they can be entitled to the presumption of truth. Id. Here, the SEC pleads ample facts to support the conclusion that Jackson and Ruehlen both knew some portion of the “special handling” and “procurement” charges in connection with obtaining new TIPs was to be used to bribe government officials. While Jackson was CFO, Noble had been sanctioned by the Nigerian government for using false paperwork to obtain TIPs. (Compl. ¶ 36.) Ruehlen worked on a subsequent internal audit, the West Africa Audit, which revealed that Noble-Nigeria continued to use false paperwork to obtain TIPs, and this practice placed it at risk of additional fines. (Compl. ¶¶ 47, 48.) If true, these facts make plausible the allegation that obtaining TIPs in this manner was illegal. Yet, by May 2005, Ruehlen sought authorization for a payment to Noble’s customs agent for obtaining a TIP based on false paperwork, and unambiguously acknowledged .to Jackson that the TIP was obtained through false paperwork. (Compl. ¶¶ 82-85.) The payment he sought approval for was cryptically titled a “special handling” or “procurement” charge. (Compl. ¶¶ 69, 82.) Furthermore, Ruehlen had, by that point, seen the customs agent’s invoice with “receipts” from NMA and NPA evidencing “export” when the rig had never moved. (Compl. ¶ 80.) These facts, taken together, plausibly support the inference that Jackson and Ruehlen understood that false paperwork TIPs were improper and these payments to the customs agent were to be used, at least in part, to bribe Nigerian government officials to take or fail to take some action they were legally required to take, which, if taken, would have resulted in the denial of the false paperwork TIPs. 15 U.S.C. § 78dd-l(a)(3)(A)(ii). Specifically, the facts alleged support the conclusion that payments were made to foreign officials in order to obtain TIPs based on paperwork known to be false or to obtain official validation of the false paperwork by some foreign official that would, in turn, disguise the false nature from those foreign officials that ultimately would grant the TIP, or some combination. The allegation that Jackson and Ruehlen understood that the “special handling” or “procurement” fees associated with TIP extensions were to be used to bribe government officials is also plausible. As to Ruehlen, the allegation is plausible even with regard to the earliest payment he authorized, in August 2004. This is because Noble-Nigeria’s Operations Manager warned Ruehlen that he did not have a good feeling about the fee the customs agent sought and even explicitly stated that he believed the customs agent may not be operating “above the table.” (Compl. ¶ 58.) Yet, Ruehlen nonetheless sought Jackson’s approval, indicating that the cost was “high but necessary.” (Compl. ¶ 59.) If true, this is enough to make plausible the allegation that Ruehlen knew that at least some of the money going to the customs agent would be used to bribe government officials to influence their decision with regard to an official act, the granting of a TIP extension. However, as to these allegations, the Court doubts that Jackson understood, by this time, that this payment would be used to bribe government officials. There are no facts pled to suggest that Jackson was aware of the Operations Manager’s warning, or that he understood that a “special handling” fee generally corresponded with a bribe; Jackson may have reasonably believed this was just the cost of a TIP extension. By the time Jackson approved the next TIP extension-related payment, however, the facts had become materially different. By then, Ruehlen had openly admitted that he has resumed the use of false paperwork. (Compl. ¶¶ 82-85.) Jackson and Ruehlen had developed a system whereby Jackson pre-approved all routine payments to government officials in a blanket manner, but did not so pre-approve TIP-related payments. (Compl. ¶ 91.) Jackson knew that the TIP extension-related payment was similarly dubbed a “special handling” fee and could see that it was comparable in amount to the “special handling” fee he previously approved for a false paperwork TIP. (Compl. ¶¶ 82, 89, 98.) This is sufficient plausibly to charge Jackson with knowing that the purpose of the payment was to bribe a government official to perform an official act. The allegation that Jackson knew the payments would be going to bribe foreign officials became even more plausible after Ruehlen submitted a blanket pre-approval request for non-TIP routine payments to government officials for the quarter, and the total amount turned out to be comparable to the amount in “special handling” fees for one TIP extension. (Compare Compl. ¶¶ 82, 100 with Compl. ¶ 98.) The Court finds these allegations sufficient. The SEC contends, however, that it does actually identify the foreign officials by country, government agency, and action sought. (Resp., at 13.) The Court cannot agree. The SEC undoubtedly alleges that the foreign officials are Nigerian government officials, but, save one place in the Complaint, the Court cannot find an allegation as to which governmental agency was to be offered payment and what specific action it was expected to take in exchange for this payment. (See Compl. ¶ 69 (alleging that the customs agent’s price proposal showed that payments would be made to NPA and NMA).) Even in Paragraph 69, the Complaint does not actually allege that the payments are made to these agencies in exchange for their “creating” the false evidence of export and import, as the SEC claims. (Resp., at 13.) The Court does not doubt that to be the implication of the allegations, as the Complaint subsequently alleges that such false papers were in fact provided “from” the NMA and NPA. (Compl. ¶ 80.) But the allegations as written do not actually say the payment is made to those agencies “in exchange” for “creating” false paperwork. (Resp., at 13; see also Compl. ¶ 27 (alleging that bribes were made to Nigerian government officials to “process” illegitimate TIPs with false paperwork).) Furthermore, the Court cannot find in the Complaint an allegation that “NCS officials” received payments “in exchange” “for approving and granting TIPs and TIP extensions.” (Resp., at 13.) Throughout the Complaint, the SEC discusses actions the NCS took with regard to Noble’s rigs, but concludes only that those actions would not have been taken but for payments to “government officials.” (See Compl. ¶¶ 73, 96, 129.) In places, the • Complaint even indicates that NCS would not have taken certain actions but for the provision of certain false paperwork, which may well have been obtained through payments to NPA and NMA. (See Compl. ¶¶ 81, 109.) As discussed in detail above, the Court finds the SEC’s allegations that payments were made to Nigerian government officials sufficient. However, if the SEC wishes to amend its Complaint to plead the allegations its Response purports it to have pled, it has leave to do so. 2. “facilitating” payments and “corruptly” Defendants argue that the FCPA charges must be dismissed because the SEC bears the burden of pleading the inapplicability of the “facilitating” payments exception, 15 U.S.C. § 78dd-l(b), and it has failed to do so. (Jackson Mot., at 13-19; Ruehlen Mot., at 7, 13-17.) Defendants also argue that the SEC has failed to plead sufficient facts that would support the inference that Defendants acted “corruptly” because the facts pled by the SEC are equally consistent with Defendants’ belief that the payments were permissible facilitating payments, and because, in any event, the SEC has not alleged sufficient facts to indicate that the payments were made with the requisite intent. (Jackson Mot., at 13-19; Ruehlen Mot., at 13-17.) Finally, Ruehlen argues that the “facilitating” payments exception is unconstitutionally vague. (Ruehlen Mot., at 17-21.) The SEC contends that Defendants bear the burden of pleading the inapplicability of the “facilitating” payments exception, but claims that, in any event, it has negat- • ed the “facilitating” payments exception. (Resp., at 22-27.) The SEC further argues that it has adequately pled corrupt intent because it has pled sufficient facts to support the inference that Defendants knew their actions did not fall under the “facilitating” payments exception and were, in fact, taken with the requisite evil motive. (Resp., at 29-35.) Finally, the SEC argues that the “facilitating” payments exemption is not unconstitutionally vague because a man of common intelligence would have understood what would constitute a permissible payment under the exception and what would not. (Resp., at 27-29.) a. “facilitating” payments exception Ruehlen argues that the SEC must plead the inapplicability of the facilitating payments exception. (Ruehlen Mot., at 7.) Ruehlen contends that, because the FCPA contains affirmative defenses and because Congress deliberately created an exception, not an affirmative defense, for “facilitating” payments, the SEC must bear the burden of pleading its inapplicability. (Ruehlen Reply, at 5-6.) The SEC contends that, as a default rule, plaintiffs are not required to negate an exception to a statute in order to state a claim, and that only in rare instances, when an exception is so essential to defining the crime that the crime cannot be understood without it, do plaintiffs bear the burden of proof. (Resp., at 22-24.) The Supreme Court has held that it is a “settled rule” that a “pleading founded on a general provision defining the elements of an offense ... need not negative the matter of an exception made by a proviso or other distinct clause ... and that it is incumbent on one who relies on such an exception to set it up and establish it.” McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 67 L.Ed. 301 (1922). “In rare instances, an exception can be so necessary to a true definition of the offense that the elements of the crime are not fully stated without the exception.” United States v. Outler, 659 F.2d 1306, 1310 (5th Cir.1981). Just because a statute has both affirmative defenses and exceptions does not automatically mean the plaintiff is understood to bear the burden of pleading and proving the inapplicability of an exception. See Ekotek Site PRP Committee v. Self, 932 F.Supp. 1319, 1322-23 (D.Utah 1996) (finding that defendants bear the burden of proving an exception applied even though Comprehensive Environmental Response, Compensation, and Liability Act had a separate section that codified affirmative defenses). Contrary to Ruehlen’s contention, the Court cannot, in every instance, divine, from the sheer fact that Congress chose to exempt “facilitating” payments from liability through an exception instead of an affirmative defense, that it intended for plaintiffs to bear the burden of pleading and proving the exception. Instead, the Court starts from the presumption that Defendants bear the burden of raising and proving the applicability of an affirmative defense. McKelvey, 260 U.S. at 357, 43 S.Ct. 132. The Court then considers whether this statute is one of those rare instances where the true definition of the offense cannot be discerned unless the exception is negated. Outler is instructive as an example. There, the Fifth Circuit found that, in charging a doctor with unlawfully dispensing or distributing a controlled substance under 21 U.S.C. § 841(a), the government is required to plead that the physician lacked a legitimate medical purpose in issuing the prescription; to hold otherwise and place the burden on the defendant would essentially create a “presumption that every physician who prescribes a drug does so without a legitimate medical reason.” Outler, 659 F.2d at 1310 n. 3. The Outler court expressed skepticism that Congress would have intended such a result. Id. This Court cannot say, however, that a comparably outrageous presumption would result here if a defendant were to bear the burden of raising and proving the inapplicability of the “facilitating” payments exception. It is also worth noting that the Supreme Court has previously held that, in light of “the broadly remedial purposes of federal securities legislation, imposition of the burden of proof on an issuer who would plead the exemption seems to us fair and reasonable.” SEC v. Ralston Purina Co., 346 U.S. 119, 126, 73 S.Ct. 981, 97 L.Ed. 1494 (1953). However, strongly weighing in favor of the contrary position are the particular circumstances that led up to the addition of the “facilitating” payments exception, which neither party addresses. When the FCPA was first enacted in 1977, there was no such explicit exception, but the legislative history indicated that by using the word “corruptly,” Congress intended to exempt such payments from the purview of the statute. For instance, the House Committee on interstate and foreign commerce provided as follows in its report: The language of the bill is deliberately cast in terms which differentiate between such payments and facilitating payments, sometimes referred to as “grease payments.” In using the word “corruptly,” the committee intends to distinguish between payments which cause an official to exercise other than his free will in acting or deciding or influencing and act or decision and those payments which merely move a particular matter toward an eventual act or decision or which do not involve any discretionary action. H.R.Rep. No. 95-640, at 4 (1977). Similarly, the Senate Committee on Banking, Housing and Urban Affairs wrote: